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Whistleblowers Allege Retaliation for Filing Code Complaints

In July 2016, commissioners from the City’s Parks, Recreation, Senior and Youth Services Commission were invited to tour the publicly-owned Riding Park at the Eastern open space. The property is managed for the city by Blenheim Facilities Management, which also uses the Riding Park for their other business, Blenheim Equisports, a private equestrian show business.

Concerned by the condition of the property, one of the commissioners submitted a complaint to City Code Enforcement about what she believed were health and safety issues.
Photos (later printed in the CCS) show electrical wiring and extension cords strung through dry trees and brush, extension cords buried underground to serve as electrical conduits to multiple RVs, waste water draining to the creek from RVs and from horse wash racks, extension cords affixed to the sides of plywood panels and strung overhead in makeshift hay storage units, trailers which appeared were being used as permanent residences, and soil, concrete, trash and sod that had been deposited into the creek.

City code enforcement eventually cited Blenheim for most of the conditions, but advised the commissioner to file a complaint with the Orange County Fire Authority (OCFA) about the fire safety concerns. Following is an account of what occurred next, based on documentation obtained by the CCS.The OCFA Complaint

Commissioner Kim McCarthy submitted two complaints within a week through the OCFA’s online system, both of which the OCFA denied having received. The commissioner then drove to the local OCFA station to file the complaint in person.

The commissioner stated that Johnson then said he has a contact at "the Ranch" (which sold the Riding Park to the city in 2009), and that he inspects the Riding Park property before and/or during the Ranch’s annual rodeo held at the Riding Park. He reportedly also offered his opinion that Blenheim does a great job managing the property.

The problem with OCFA Sr. Inspector Johnson’s denial of violations at the Riding Park property is that the California Fire Code lists as violations conditions depicted in the photographs shown to Johnson.

SJC City Manager Ben Siegel claimed that he received a complaint from Johnson about the commissioner’s behavior. According to Siegel, Johnson claimed that the commissioner "misrepresented" herself as a city employee. The commissioner denies this, stating that she explained to him that although the City Parks and Recreation commissioners had been invited to tour the park, she was filing the complaint as a private citizen. This is supported by the fact that she listed her home address and home phone number on the complaint form. The commissioner stated that she checked an "employee" box listed on the form as there was no check box available for a city commissioner. The commissioner’s claim is further supported by an email to OCFA Division Chief John Abel, in which she reiterated that although she had been invited to tour the park as a commissioner, she was "filing the complaint as a private resident." Chief Abel did not respond to her request for a conversation. However, Chief Abel stated that the OCFA did not file a complaint with the City. In fact, Chief Abel said that the City Manager's office contacted him (not the other way around), soliciting information about Kim McCarthy's conduct during her interaction with Johnson. Chief Abel said he told them that no complaint had been filed, and that he would follow up with Sr. Inspector Johnson about his interaction with the commissioner.

The OCFA’s credibility has been called into question a number of times in recent years. According to news reports in the OC Register and the Voice of OC, the OCFA has replaced two chiefs in the past five years, for reasons ranging from "an atmosphere of bullying and intimidation" to a scandal involving cities being billed for hazmat inspections that were never performed. In fact, the city council in Irvine considered non-renewal of their contract with the OCFA, and other cities may be following suit.

OCFA Complaint Used As Justification for Investigation

The city manager used the OCFA’s "complaint" as justification to conduct an investigation of the commissioner. Documents reveal that the commissioner learned about the city manager’s investigation not from the city manager, but from someone who attended an early morning community "coffee chat", during which the details were revealed. While the general public had details of the investigation in the morning, the city manager did not notify the city council about it until later that afternoon. In addition, according to the commissioner, the city manager never interviewed her during his investigation.

Second Investigation Conducted

The city manager also conducted an investigation of the second Parks and Recreation commissioner, Eva Crabbs, who had expressed concerns about a report from City Manager Siegel in which he indicated that there was no residential RV use at the Riding Park. Personal review of the Riding Park by the commissioner revealed that there was in fact residential use in the Riding Park. The commissioner photographed an employee of Blenheim’s Las Vegas business venture exiting an RV after he had spent the night there. As a result, a libelous statement from Melissa Brandes to the City (which she ultimately retracted) led to a two-month long investigation. The conclusion was that no wrong doing by the commissioner had taken place. The commissioner demanded an apology from the city manager for disseminating "false and defamatory information" about her in a widely distributed email prior to the investigation, which led to articles in local newspapers and online which the commissioner believed were defamatory. The city manager did not apologize.

The justification provided by the city manager for spending money and staff time (including his own), on these investigations is that it is his responsibility to investigate complaints. However, the CCS uncovered documented complaints filed against another commissioner and a council member which were never investigated by the city manager. In those cases, the allegations included threats, harassment and defamation.

The city manager’s actions have led to an investigation by the California Labor Board, a lawsuit filed by the OC Coastkeepers alleging on-going violations at the Riding Park/San Juan Creek, and a potential civil lawsuit for whistleblower retaliation and abridgement of First Amendment rights to free speech.

The commissioners state that all of this could have been avoided if the city manager had simply ensured that the Riding Park was in compliance with all city and state codes, rather than denying the problems existed and targeting the ones who reported it.

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